The Supreme Court on Monday morning declined to take an appeal by anti-abortion activists in a First Amendment dispute with Planned Parenthood, as well as a test of New Jersey’s “slogan statutes.” After adding 12 cases to their merits docket for the 2023-24 term on Friday, the justices on Monday denied review in nearly 900 cases that they considered at their conference last week. The justices also sought the Biden administration’s views in three more cases. The full list of orders, which spans 46 pages, is one of the longest lists released each year.
The justices denied a group of petitions filed in a dispute between Planned Parenthood and an anti-abortion group that secretly recorded Planned Parenthood doctors and staff. The group then published its recordings, alleging that Planned Parenthood was trafficking in fetal tissue for profit. A jury awarded Planned Parenthood nearly $2.5 million, but the group contended that its conduct was protected by the First Amendment.
The justices also rejected a challenge to the constitutionality of New Jersey’s “slogan statutes” – laws that allow candidates in primary elections to list a short phrase next to their names on the ballot. The specific question at issue in Mazo v. Way was whether courts should subject such laws to the most rigorous constitutional test, known as strict scrutiny, or whether the laws should instead be reviewed using a less stringent balancing test.
The justices denied a petition for review filed by John Eastman, a former clerk to Justice Clarence Thomas, in a dispute over documents sought by the House of Representative committee investigating the Jan. 6 attacks on the U.S. Capitol. A federal district court ruled that emails sent by Eastman, who in August was indicted in Georgia along with former President Donald Trump and 17 others on charges that they conspired to overturn the results of the 2020 election, should be turned over under the “crime-fraud” exception to the protection for attorney-client communications. Eastman had sought to have that ruling thrown out after the emails were accidentally disclosed, but the lower court rejected that request, and the Supreme Court on Monday declined to weigh in.
Thomas recused himself from the consideration of Eastman’s petition. The Supreme Court did not provide any reason for its denial of the petition, but Chapman University – Eastman’s employer, which turned over the emails – waived its right to oppose the petition, and the justices did not seek a response, indicating that the decision to deny review was not a close call.
Other cases in which the justices denied review on Monday included:
- Georgia-Pacific Consumer Products v. International Paper Co. – Whether the three-year statute of limitations to obtain contributions for a clean-up under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, a law enacted to clean up and manage hazardous waste sites, begins to run when there is a judgment that declares a company to be liable under CERCLA but does not actually order any payment of costs or damages.
- Verdun v. City of San Diego – Whether the city’s use of tire chalking, in which parking officers mark the tires of parked cars with chalk as a method of enforcing time limits for parking spaces, violates the Fourth Amendment’s ban on searches without a warrant, or whether tire chalking instead falls within the exception to the warrant requirement for administrative searches – that is, a search for regulatory purposes, rather than to uncover evidence of a crime.
- Jackson v. Ohio – Whether police conduct a “search” of the car within the meaning of the Fourth Amendment when one officer opens the car door and another one looks in the car for contraband through the open door.
- ABKCO Music v. Sagan – Whether direct liability for copyright infringement is limited to the person who actually presses the button to make the infringing copies, or instead also applies to the person who instructs his employee to post the infringing copies online instead of doing so himself.
Calls for the Biden administration’s views
The justices called for the federal government’s views in three cases:
- Blenheim Capital v. Lockheed Martin, involving whether a foreign government’s purchase of military equipment from a U.S. supplier is “commercial activity” for which they can be sued in U.S. courts
- Dermody v. Massachusetts Executive Office of Health & Human Services, a dispute over the interpretation of the Medicaid Act and eligibility for benefits that cover long-term nursing care
- Astrazenaca UK v. Atchley, a lawsuit seeking to hold pharmaceutical and medical-device companies responsible under the Anti-Terrorism Act for sales – as well, the plaintiffs allege, bribes and gifts – to the Iraqi government of equipment that was later used to injure U.S. servicemembers and contractors
There is no deadline for U.S. Solicitor General Elizabeth Prelogar to file her briefs on behalf of the Biden administration.
The justices did not act on several notable petitions for review that they considered at last week’s conference. The justices will consider Tingley v. Ferguson, involving whether a Washington state law that prohibits licensed therapists from practicing conversion therapy on children violates the First Amendment, again at their private conference on Friday, as well as Stein v. People for the Ethical Treatment of Animals, in which North Carolina has asked the justices to decide whether a state law that allows employers to sue employees who make undercover video or audio recordings violates the First Amendment.
The justices denied review in one challenge to the constitutionality of New York’s rent-stabilization system, which applies to about half of New York City’s apartments and (among other things) limits rent increases, but they will consider two other challenges again on Friday morning.
The justices also did not act on the case of Richard Glossip, an Oklahoma inmate who is seeking to set aside his conviction and death sentence. The justices put Glossip’s execution on hold in May to give them more time to consider his appeals. In an unusual twist, the state’s attorney general, Gentner Drummond, has supported one of Glossip’s petitions for review.
The court is expected to issue orders from its Oct. 6 conference on Tuesday, Oct. 10, at 9:30 a.m.
This post is also published on SCOTUSblog.